WASHINGTON, DC – Commissioner Peter Kirsanow of the U.S. Commission on Civil Rights, speaking as one member of the Commission and not on behalf of the Commission as a whole, issued the following statement in response to the Commission majority’s statement regarding DACA:

The Commission majority has expressed its disapproval of President Trump’s rescission of DACA. It is disappointing that the Commission has so little regard for the rule of law.[1] By implementing DACA, DHS, under the direction of the Obama Administration, abdicated its responsibility to faithfully enforce the law. DHS did not merely decline to prosecute low-priority individuals, but provided them with a temporary legal status and access to benefits.[2]

Peter Kirsanow

As Judge Andrew Hanen stated, “DHS does not seek compliance with federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law.”[3] It is questionable, to say the least, whether an initiative that excludes an entire class of people from deportation would be permissible under the APA, but DHS did not even attempt to implement DACA through notice-and-comment rule-making.[4] DHS thus violated the APA.[5]

There are doubtless fine individuals among the DACA recipients, as there are in almost any large group of people. The ranks of DACA recipients also include less savory individuals.[6] Many if not most of the DACA recipients have now been adults for some time, and therefore able to decide whether to conform their conduct to the law.

Whether or not the benefits of granting amnesty to individuals brought to the United States as minors outweigh the costs is a matter for Congress to decide, not the President. Any grant of legal status to the DACA class, particularly without deportation of their parents, amounts to a reward for lawbreaking.

Lawbreaking does not cease to be serious merely because it occurs on a large scale, or because the lawbreakers are politically favored.

It is surprising that the Commission majority does not take the prospect of rule by fiat more seriously. As Judge Hanen wrote, “[I]f one accepts the government’s position, then a lack of resources would be an acceptable reason to cease enforcing environmental laws, or the Voting Rights Act, or even the various laws that protect civil rights and equal opportunity.”[7] DACA recipients may be a sympathetic class, but there is no guarantee that a government that does not respect the limits of its authority will restrict itself only to actions that command the approval of the Commission majority.

[1] President Obama himself acknowledged on multiple occasions that he did not have the legal authority to implement DACA, yet he did so nonetheless. Obama’s Remarks on Immigration, N.Y. Times, July 1, 2010.

For example, there are those in the immigrants’ rights community who have argued passionately that we should simply provide those who are [here] illegally with legal status, or at least ignore the laws on the books and put an end to deportation until we have better laws. And often this argument is framed in moral terms: Why should we punish people who are just trying to earn a living?

I recognize the sense of compassion that drives this argument, but I believe such an indiscriminate approach would be both unwise and unfair. It would suggest to those thinking about coming here illegally that there will be no repercussions for such a decision. And this could lead to a surge in more illegal immigration. And it would also ignore the millions of people around the world who are waiting in line to come here legally.
Ultimately, our nation, like all nations, has the right and obligation to control its borders and set laws for residency and citizenship. And no matter how decent they are, no matter their reasons, the 11 million who broke these laws should be held accountable.

[2] Texas v. U.S., 2015 WL 1540022, at *7 (S.D. Tex. 2015). The analysis of whether the directive is a substantive rule is made in regard to DAPA and the 2014 extension of DACA, but is equally applicable to DACA in its original form.

[3] Texas v. U.S., 86 F.Supp. 591, 634 (S.D.Tex. 2015).

[4] Texas v. U.S., 2015 WL 1540022, at *5-6 (S.D. Tex. 2015).

[5] Texas v. U.S., 86 F.Supp. 591, 671-72 (S.D.Tex. 2015).

[6] Id. at 630 (“Arizona’s Maricopa County has similarly estimated the costs to its law enforcement stemming from those individuals that received deferred action status through DACA. That estimate, which covered a ten-month period and included only the law enforcement costs from the previous year, exceeded $9,000,000.”).